UPDATED 11:48 a.m.

The Supreme Court agreed on Monday to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed and sends the individual to jail, or whether it only attaches when a prosecutor prepares to or makes a charge.

The case of Rothgery v. Gillespie County, Texas (07-440) was one of three newly granted cases. The other two cases involve an appeal by the Philippine government in a dispute over control of the assets of the late president, Ferdinand E. Marcos, and an appeal by the federal government over the right to sue the government for a tax refund in a constitutional lawsuit, if the taxpayer has failed to first pursue a tax refund claim with the Internal Revenue Service and then filed a refund claim in federal court.

Among a number of significant cases denied review, the Court chose not to hear a new appeal by a Washington State congressman, Rep. James A. McDermott, in a long-running legal battle over his disclosure to the media of the audiotape of a conversation among House Republican leaders discussing strategy for dealing with an ethics scandal. As a result of the Court’s denial of review of McDermott v. Boehner (07-439), Rep. McDermott now faces the payment to Rep. Boehner of $10,000 in damages and $50,000 in punitive damages. The issue of liability for attorneys’ fees and costs, which have recently been estimated at perhaps $880,000 or more, is now pending in U.S. District Court. Chief Justice John G. Roberts, Jr., took no part in the Supreme Court’s order denying review of the new appeal. He was a member of the D.C. Circuit in an earlier stage of the case, when Rep. McDermott sought initial en banc review after the case returned from its first trip to the Supreme Court.

In another order, the Court asked the U.S. Solicitor General for the federal government’s views on an important case on legal liability for using tests that are alleged to be racially discriminatory in determining the qualitifications of public school teachers. The case is New York City Board of Education v. Gulino, et al. (07-0270). The city school system imposed a state-required a test of general knowledge for teacher certification. It was sued under Title VII of the civil rights law for alleged racial discrimination in its hiring practices. There is no deadline for the Solicitor General to respond.

The new right-to-counsel case the Justices will hear, with oral argument likely in March, involves a Fredericksburg, Texas, man, Walter Allen Rothgery, who sought but was denied the aid of an attorney when he appeared before a magistrate at a probable cause hearing. The magistrate found probable cause to support a charge that Rothgery was a felon who had a gun; Rothgery was sent to jail. He was released on bond, but rearrested later after a grand jury indicted him. Once he obtained a lawyer, the charges were dismissed; the felony allegation against him turned out to have been an error because charges against him in California had been dismissed.

Rothgery sued the county in a civil rights lawsuit over the denial of a lawyer at the first hearing. The County opposed the lawsuit, contending that the right to counsel did not attach until he actually had been indicted — a claim ultimately upheld by the Fifth Circuit Court. Rothgery’s appeal was supported by 22 law professors urging the Justices to clarify when the right to counsel attaches.

The Philippine government appeal (Philippines, et al., v. Pimentel, et al. (06-1204) involves rival claims to about $35 million held in a Merrill Lynch account for a Panamanian corporation, Arelma S.A. Marcos had set up that corporation allegedly to hide money that he acquired through corruption while in office, and before he was overthrown in 1986 after 20 years of rule. The legal issue raised by the Philippine government appeal, which claims the money and wants the other claims dismissed, is whether it had a right to be treated as a party to litigation brought by other claims to the assets. In granting review of that case, the Supreme Court added two other questions that lawyers are to address in their merits briefs: whether the government and its Presidential Commission on Good Government had a right to appeal the District Court ruling that they were not indispensable parties to the lawsuit, and whether they had a right to bring the case in an appeal to the Supreme Court. That case, too, is expected to be heard in March.

The tax case the Court will hear, also in March, is U.S. v. Clintwood Elkhorn Mining Co., et al. (07-308). The issue: if a taxpayer could have sued for a federal tax refund in federal court, but failed to first pursue an administrative claim that was required before pursuing such a lawsuit, may the taxpayer sue directly under the Constitution, relying upon the Tucker Act. The case grows out of a lingering dispute over a federal excise tax on export of coal. The case involves three coal companies that sued for $1,065,936 in excise taxes imposed on coal exports for the years 1994, 1995 and 1996. The Federal Circuit Court allowed their Tucker Act lawsuit, awarding them the refund and adding interest for those tax years.

At the opening of the Court’s session Monday, in a brief ceremony, Chief Justice Roberts formally recognized the new U.S. Attorney General, Michael B. Mukasey, remarking: “General Mukasey, on behalf of the Court I welcome you as the chief law officer of the United States government and as an officer of this Court. We welcome you to the performance of your very important duties that will rest upon you by virtue of your office. Your commission as Attorney General of the United States will be placed in the records of the Court, and we wish you will in your new office.”

The Court’s Orders List for the day included denial of review of these issues:

** Whether state officials impose a “substantial burden” on a prison inmate’s practice of religion by a policy requiring an inmate to forego his obligation to attend regular worship services, because of a shortage of clergy. The Fifth Circuit Court rejected the challenge. (Baranowski v. Hart, 07-137).

** Whether states have power, protected from constitutional challenge, to regulate the sale of a life insurance policy to another person — a so-called “viatical transaction”– if there is no role for an insurance company in the transaction. The Fourth Circuit Court ruled that the McCarran-Ferguson Act shields the law from Commerce Clause challenge because it regulates the insurance business. (Life Partners v. Morrison, 07-261)

**Whether a 1996 federal law provides legal immunity for those who steal or misuse, from the Internet, the intellectual property of others if that property is protected by state law. The Ninth Circuit ruled that the legal immunity grant to operators of Internet services is available if the intellectual property is protected by state law; the Communications Decency Act curbs immunity only when the property is protected by federal law. (Perfect 10 v. CC Bill LLC, 07-266)

** Whether the Court would clarify the constitutionality of police searches of suspects’ body cavities. The Maryland Court of Appeals ruled that it violated the Fourth Amendment for police to manually remove a plastic bag of illegal drugs from the buttocks of a suspect. The state of Maryland, supported by 15 other states, argued that this misapplied Fourth Amendment doctrine. (Maryland v. Paulino, 07-284)

** Whether it is unconstitutional for a city government to ban the posting of for-sale signs on cars parked on city streets. The Sixth Circuit struck down such an ordinance as a violation of commercial speech rights. (Villege of Glendale, O., v. Pagan, 07-420).

Posted in Rothgery v. Gillespie County, Uncategorized